Jeffrey Toobin: The Law Still Works

The arrest of Najibullah Zazi has reminded all of us that terrorism—or at least the realistic possibility of terrorism—has not disappeared. At this point, it sure looks like he was tied to Al Qaeda, and that he was actively building a bomb. Unlike some of the other post-9/11 terror suspects, Zazi looks like he might have been the real deal.

So what should we do about him, especially if he has colleagues on the loose? At The New Republic, Michael Crowley asks a question that’s probably on many minds:

Doesn’t this seem like something approaching the “ticking time bomb” scenario that constantly bedevils debates about interrogation techniques? How hard are the feds working Zazi for information about possible would-be terrorists inside the U.S. right now? How hard should they be working him?

Time to break the waterboard out of storage?

I think not—and not just because it’s illegal. The U.S. Attorney’s office in Brooklyn which is bringing the case (and where I was a prosecutor in the early nineties) filed a brief where it outlined the reasons why Zazi should be detained rather than released on bail. The brief strongly suggests that our government has been tracking Zazi for months—that investigators have tapped both his computer and his phones, in Pakistan as well as the United States. According to the brief, Zazi has been discussing bomb-making with confederates, sharing information about how to make a bomb, and generally making plans for a terrorist attack. All of this surveillance means that the government has good information about Zazi’s confederates—their phone numbers and email addresses. This information can, of course, be traced back to identify further possible associates. It’s investigative gold.

All of this is not to say that Zazi himself could not (or should not) be interrogated. (As a criminal suspect, he could take the Fifth and refuse to answer questions.) But the way cases get made is through the hard information provided by the kind of investigative work that the feds are doing in this case. A rough interrogation of Zazi at this point would be both immoral and counterproductive. The feds, it appears, are handling Zazi the right way, without torture. Obviously, there is much unknown about Zazi at this point—to outsiders like me and probably even to the investigators themselves. But it’s difficult for me to see how a “hard” interrogation of Zazi at this point would do anything but hurt the government’s case—in the courtroom and beyond.

Jeffrey Toobin has been a staff writer at The New Yorker since 1993 and the senior legal analyst for CNN since 2002.